Bill to Boost Indecency Fines Advances in House

House members are looking to hit broadcasters where it hurts – in the pocketbook – to crack down on racy programming.

A bill with strong bipartisan support that would boost the maximum fine for indecency from $32,500 to $500,000 passed the House Commerce Committee 46-2 last week. The full House planned to consider it Wednesday.

Rep. Fred Upton, R-Mich., who chairs the committee’s telecommunications panel and introduced the bill, said he expects it to pass with ease.

“Last week’s vote is pretty reflective of the whole House,” he said.

Upton sponsored a similar bill last year. It easily won House passage, but lawmakers couldn’t work out a compromise agreement with the Senate, which approved a different version.

The Federal Communications Commission has stepped up enforcement of the indecency statute, perhaps most notably with a $550,000 fine against CBS for its 2004 Super Bowl broadcast that included Janet Jackson’s breast-baring “wardrobe malfunction.” Radio personality Howard Stern also has been a frequent target.

Fines for indecent programming exceeded $7.7 million last year. Four years ago, FCC fines totaled just $48,000.

All five members of the FCC – three Republicans and two Democrats – favor greatly increasing the fines.

The House bill also would allow the FCC to fine an individual entertainer, such as a disc jockey, without first issuing a warning, as is the case now. It would raise the top fine on an entertainer from $11,000 to $500,000. The FCC has never before issued such a fine.

Reps. Jan Schakowsky, D-Ill., and Henry Waxman, D-Calif., were the only two Commerce Committee members to vote against the measure last week, contending it would curb free speech and cause more broadcasters and entertainers to censor themselves.

Schakowsky cited the example of several ABC affiliates which last year did not air the World War II drama “Saving Private Ryan” over worries that violence and profanity would lead to fines, even though the movie already had aired on network TV.

“I think this is a slippery slope on the way for Big Brother to erode the First Amendment,” she said Tuesday. “The result is that we are entering into a time of self-censorship.”

The indecency law bars nonsatellite radio and noncable television stations from airing – between 6 a.m. and 10 p.m. – indecent material such as references to sexual and excretory functions. Those are the hours when children are more likely to be watching TV.

Under FCC rules and federal law, radio stations and over-the-air television channels cannot air obscene material at any time, and cannot air indecent material between 6 a.m. and 10 p.m. The FCC defines obscene material as describing sexual conduct “in a patently offensive way” and lacking “serious literary, artistic, political or scientific value.” Indecent material is not as offensive but still contains references to sex or excretions.

Broadcasters say they are forced to guess at what constitutes indecency because the statute is so blurry. Because of the confusion and the fear of fines, some have become extremely gun-shy.

The House bill gives affiliates protection from fines in instances in which they carry network programming that later is deemed indecent. It also requires the FCC to hold a license revocation hearing after a third offense by a broadcaster, and to respond to an indecency complaint from a viewer or listener within six months.

A similar bill in the Senate calls for raising the maximum fine on broadcasters for an indecency violation to $325,000, with a cap of $3 million for one day, but does not include any of the other provisions the House bill does. The House bill does not include any caps.

The Senate Commerce Committee has not yet announced when it will take up its bill again.

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